In the cold, sadistic world that is the FMLA, the Department of Labor tells us that ordinary, run-of-the-mill headaches (a/k/a “non-migraine” headaches) are not covered by the FMLA. Migraine headaches, on the other hand, are covered. When I try to explain the difference in FMLA training sessions for employers, they often look at me like I have two heads.

“Yeah right,” they tell me. “Like we’re really going to track every migraine headache as FMLA leave!?! Do you realize how busy we are?”

Refrain from designating FMLA leave for this reason at your own risk.

Now, employers have yet another reminder that the FMLA offers the same protections for migraines as it does for open heart surgery. Here’s the scenario:

The Facts

For years, Jill’s managers at Boeing knew of her migraine headaches. For several years leading up to 2012, plaintiff telecommuted from time to time because of her migraines, and beginning in 2012, plaintiff’s migraines became more frequent. In spring 2012, Boeing informed employees that they could no longer work partial days when they were sick — leave had to be taken in full day increments.

In June 2012, Jill was informed for the first time that she could apply for FMLA leave to cover absences caused by her migraines. So, she took intermittent FMLA leave for the remainder of 2012, but because she was no longer allowed to work partial days, her absences were far more frequent than they were before, and her reviews suffered as a result. Jill also was disciplined for “unexcused” absences. However, the facts indicate that at least some of these absences were due to her migraine headaches.

When she took a four-day leave of absence from April 29 through May 2, 2013 — for migraine headaches — her employment was terminated.

The Court Ruling

Finding that Jill gave sufficient notice of the need for FMLA leave and then was absent for migraine headaches, the court refused to dismiss her FMLA claims, finding that a jury could determine that her employer interfered with her right to take FMLA leave on these occasions and used her migraine-related absences as a negative factor in her employment. Alexander v. Boeing Company (pdf)

Insights for Employers

Strike One: The employer failed to recognize that migraines could be covered by FMLA. Despite the DOL’s pronouncement that migraine headaches are covered by the FMLA, this employer failed to consider that absences taken for this medical condition are protected. 29 C.F.R. 825.113(d)

Strike Two: The employer used Jill’s absences for migraine headaches as a negative factor in her employment evaluations, which is a sure fire way to lose on summary judgment. Here’s what her own supervisor had to say about Jill in his deposition:

It was difficult. I know in her last performance review, it was difficult to give her an adequate performance review without her being at work as much as, as often as she missed. When she was at work, she was very effective and I alluded to that in her performance review, but the fact that she did miss a lot of work did play in the fact that she wasn’t as effective as she could have been just by the fact she wasn’t there.

That’s a supervisor who was not prepared very well for his deposition. Had he been prepared, he would have understood that FMLA-protected absences (i.e., those days when she suffered from migraine headaches) could not have been used as a negative factor in her employment evaluation. The court picked up on the supervisor’s testimony and quoted it verbatim when it refused to dismiss Jill’s FMLA claims.

Strike Three: Jill’s supervisors learned that she had applied for “FMLA leave,” yet they still chose to terminate her employment at that time for “job abandonment.”

Why jump the gun? In a rush to judgment and assuming the worst, Jill’s supervisors created a whole lot of liability for the company. In these situations, employers are well served to: 1) find out the medical facts behind the employee’s absence (in other words, talk to the employee!); 2) if necessary, obtain medical certification so you can better understand the alleged serious health condition and the need for and length of leave; 3) give the employee time to provide the requested medical certification; and 4) avoid making termination decisions unless and until you have reviewed the medical certification and — with legal counsel — have decided that termination is warranted based on legitimate, non-discriminatory reasons.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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